Examination of witnesses (Questions 520
- 539)
TUESDAY 7 APRIL 1998
THE RT
HON JACK
STRAW, MP,
THE LORD
WILLIAMS OF
MOSTYN, QC
AND MR
LEE HUGHES
520. If it is excluded there is no test.
(Mr Straw) You may then come to the view that
in place of this structure there should be a simple harm test
and fewer exemptions. That is a matter for you and not for me.
The Government has put forward this set of proposals saying we
should distinguish more in advance between what is excluded and
what is then included subject to exemptions.
521. All I am putting to you is that in
certain foreign jurisdictions, which are not known for their liberalism
towards the criminal or possible criminal fraternity, such as
the USA, they have managed now for some 12 years with an exemption,
which means that law enforcement activities are testable in the
court as to whether they should be disclosed or not; whereas what
you are proposing is a much less liberal regime than that which
has operated in the United States since 1986. I can supply you
with the document, which I am sure the government has already,
called the Freedom of Information Act Guide and Privacy Act
Overview from the United States Office which goes into this.
(Mr Straw) I am sure there is such a document
but in this area of international comparison above all a little
knowledge, with great respect, is a dangerous thing. Secondly,
we have to make our own decisions.
Mr Tyrie
522. That is not a very happy line for someone
who is talking about freedom of information.
(Mr Straw) I think it is. In any event, we have
to make our own decisions about what we think is appropriate in
this country, within our circumstances and within our culture.
I happen to believe that what is said in this White Paper strikes
the appropriate balance. We cannot be led all the time by international
examples. There are plenty of things happening in American criminal
jurisdiction which nobody round this table would wish to see.
Mr Bradley: But is
there not a distinction? I agree we should not always be led by
other nations' examples because, after all, we should not lose
sight of the fact that the proposals of freedom of information
are, for a large part, exemplary and go a lot further than most——
Mr Shepherd: We do
say that.
Mr Bradley
523. —— although within that
context there is a fairly narrow field. But is there not a distinction
between criminal activity and public order? It is quite interesting
that most of the examples that we have raised have had to do with
public order and not criminal activity.
(Mr Straw) With great respect, Mr Bradley, I think
you as a new Labour member of this Committee should be the last
person to suggest that there is a clear distinction between criminal
activity and public order, given the fact that so much criminal
activity arises from an absence of public order, namely disorder.
The two are often inextricably linked. It is just there. You cannot
separate these. What may start off as a peaceful demonstration,
on a matter of public interest, can, as everybody knows, deteriorate
into gratuitous criminal activity.
524. The right to know, freedom of information
that we are talking about, is not the right to know what the crowd
is thinking. It is the operational activities of the police. In
the 1980s and in the early 1990s new and old members of the Labour
Party and others had a great deal of criticism to level at the
police and other authorities in the way they managed crowds; peaceful
demonstrations, which for the large part, were peaceful. It was
quite a legitimate criticism to make. It was quite legitimate
to ask what orders the police had issued, which led to problems
in that crowd control. We are not talking about criminal activity.
We are not talking about organised crime, the prevention thereof
or the detection thereof. We are talking about how citizens are
free to go about their lawful purposes and how their relationship
with the police can sometimes break down; and to what extent the
fault may be on the police's part and how those lessons can be
understood and learned.
(Mr Straw) All those areas seem to be ones which
are appropriate for the police complaints and discipline procedure.
In the light of an advance Select Committee report I have announced
major changes in that area. I have also, as part of that, accepted
the case, in certain circumstances, for there to be greater openness
about the publication of reports to the Police Complaints Authority.
So far as one report is concerned, which was the report in the
Lawrence inquiry, I ensured that an albeit modified version of
the report was made public and a more detailed version is available
to that inquiry. That is the way to deal with those matters, as
well as through the policing plans of the chief constable and
police authority; and, let me say, which will have quite an impact
on this, the very public discussions which will take place about
local policing under the partnership arrangements of the Crime
and Disorder Bill.
Chairman
525. I will ask one last question now before
I turn the questions over to Ronnie Campbell, which I hope you
will be able to help me with. This is where you have sent a submission
to us. In paragraph 8 of the Home Office submission you referred
to areas which you believe need to be excluded. Going beyond exclusion
for law enforcement, you then go on to refer to the security of
detained persons. You say in paragraph 8: "Information related
to the security of detained persons, or of secure buildings will
also need to be clearly covered by exclusions from the proposed
scheme." That is, total exclusion of information related
to the security of detained persons. Now, in the White Paper it
refers to the fact that the administrative functions of the police
will be covered by the Act; in other words, will be potentially
disclosable. Would the administrative functions of the police,
for instance, cover deaths in police custody? If it does, and
I assume it does but I could be wrong about that, then how does
that stack up with your reference to the fact that the security
of detained persons should be excluded?
(Mr Straw) We are dealing with the distinction
between the general and the particular. The arrangements for dealing
with prisoners in police stations, including those who are requiring
medical treatment, ought to be made public. There is no reasons
at all why they should not be. Indeed, on the whole they are.
Those arrangements, under the Police and Criminal Evidence Act,
for the proper operation of custody suites and the rights of prisoners
to prompt medical treatment and so on, as far as practicable should
be made public. A different issue arises where you have a particular
case. If there is a death in custody then a number of investigations
take place. You are then led into the area of judicial proceedings,
and disclosure at that stage will have to come through the judicial
rules of disclosure and those relating to police complaints rather
than, it seems to me, within the framework of the general Freedom
of Information Act. But there are quite strong rules on disclosure,
in any event, in this field.
Mr Campbell
526. May I bring in the Security Service,
MI5 basically. I know you have looked at the Green Paper on Information
and obviously you have put in your penn'orth as Cabinet Minister,
and we are all dying to see what has been cut out and what has
not been cut out. This is a very liberal Bill and when Mr Shepherd
and I were in Canada the other week they thought it was a very
liberal Bill.
(Mr Straw) It certainly goes further than some
foreign administrations. It certainly goes farther than France,
may I say, if we are looking to international comparisons.
Mr Campbell: We shall
have to wait and see when the paper comes out.
Mr Shepherd
527. And the old Soviet Union too.
(Mr Straw) I think that would be very damaging
to our relations with France to compare France with the old Soviet
Union.
Mr Shepherd: I did
not. I was just looking at your analogies.
Mr Campbell
528. I would like to raise the question
of personal files in the Security Service sense. I just wonder
what your views are on what should be exempt and what should be
in one's personal file.
(Mr Straw) Given the nature of the business in
the Security Service, I do not believe that any part of what they
do could come within the framework of a freedom of information
regime. Under the Security Services Act 1989 their job is related
to national security, which these days includes economic well-being
of a country; and under the 1996 Act they can also look into investigations
of serious crime. I have thought about this a great deal. It is
not something where I have just followed the line. I have taken
a close interest in the work of the Service. It is a small Service.
Everything it does is related to its 1989 and 1996 objectives.
I think that if there were a breach in the exemption, that could
undermine its operational effectiveness. That is my judgment.
529. Let us take the case of Arthur Scargill.
As you know, he was the leader of the 1994 Miners' Strike. When
he tried to get information, which was supposed to be contained,
from a bloke called David Shayler.
(Mr Straw) I have heard of Mr Shayler, yes.
(Mr Straw) He tried to get information from him
because he is a defector of MI5. He has told Arthur basically
that they hold four volumes of information on Arthur Scargill;
him personally, personal information on him. Do you not think
it is right that Arthur Scargill should, under the Act, be able
to get that information which is held on him? I know you might
say he is a security risk, but I would not think that Arthur Scargill
is a security risk now. He might have been a few years ago but
he is not now.
(Mr Straw) Let me talk in general terms about
personal files.
530. I would like to know what is on me!
(Mr Straw) Information is the business of Security
Services. They have to be able to gain information, partly through
perfectly overt means like reading the newspapers, in so far as
they are a source of reliable information, and partly through
covert means. That includes interception; various kinds approved
under a framework laid down by Parliament; and surveillance, which
is also a framework laid down by Parliament; and the use of informants
and agents. What is on any file that the Security Service has
is information which has come from both overt and covert sources.
Their work would be rendered impossible if the subjects of those
files were able to have access to them. It would literally be
impossible.
531. Surely, Home Secretary, you are not
telling me that files on Arthur Scargill, at this moment in time,
are going to be any danger to the country? It cannot be.
(Mr Straw) First of all, it is never the practice
of Ministers or the Security Service to say whether or not there
is a file on any individual person. The only person I can tell
you there happens to be a file on is myself when I was positively
vetted. Mr Shayler disclosed this and this was made public. I
was told and then Mr Shayler disclosed this. I have not asked
to see my file. I think it would be wholly wrong for me to do
so because that would be to abuse my position as Secretary of
State.
532. I am not talking about you, I am talking
about Arthur Scargill. Arthur Scargill has requested that information
and he has been refused.
(Mr Straw) It is the same point. I have not asked
to see my file as Secretary of State because that would be to
provide me with a privilege which is not available to any other
ordinary citizen. It would also be unjustified for me to do so.
My judgment must apply, therefore, to anybody else who has been
the subject of activity by the Security Service in the past.
533. Quite honestly, I do not know where
you are coming from, Home Secretary. What you are telling me is
that what the Security Service have on any person in the land,
they are not going to get if you say there is going to be a blanket
exemption on MI5, end of story.
(Mr Straw) There would be a separate issue, which
was dealt with in an adjournment debate a couple of months ago,
which relates to the circumstances in which files held by the
Security Service should, at an appropriate moment, be placed in
the Public Record Office. The Security Service has a large number
of files. We are currently conducting an exercise as to whether
some files should be destroyed altogether, and individuals concerned
for their privacy would probably argue that they should. On the
other hand, there is a genuine historic interest in a lot of these
files.
534. There would be in Arthur Scargill's
file, I am sure.
(Mr Straw) A balance, therefore, has to be made.
We are making careful arrangements for as early release as possible
of these files into the Public Record Office—but that is
going to be some decades, let me say, and I will explain why—alongside
the destruction of files which have no historic value. One of
the first Parliamentary Questions I was asked, when coming into
office, by Mr Norman Baker, who was an ever assiduous questioner
in relation to the Security Service, was what was the oldest file
which the Home Office held, which was still classified as secret.
The answer which was put up to me was 1874. This was a file held
by the then Irish Secret Service. I asked for this series of files
to be reviewed because this date, 123 years on, seemed to be that
there was probably little argument for retaining the file. But
what is interesting is that it was agreed that the file should
be placed in the Public Record Office, but I also agreed that
the names of informants should be deleted from the record because
even 123 years later there will be families in the geographical
areas of Northern Ireland to which these files relate, who will
have relatives and who could use the information again from that
file to pay-off old scores. So memories do last long and it is
very, very important if one is running the Security Service—and
this also applies to the police—always to maintain the integrity
and the confidentiality of those who are providing you with information.
535. I can see where you are coming from,
but basically the argument is that the Security Service is not
going to get the information because it is not going to be in
the White Paper.
(Mr Straw) I do not believe it should be. I think
that the Security Service cannot operate unless it operates in
secrecy. That said, quite a lot of information——
536. But when it is somebody as old as Arthur
Scargill—he is coming to his retirement shortly—that
information is still held on him. Surely if he is no threat to
the country, he is no threat to security, if he is a threat and
somebody comes along with information to the commissioner, if
he is a threat then I would understand that; but if he is not
a threat why keep the information?
(Mr Straw) With great respect to you, Mr Campbell,
I am not going to discuss files held on Mr Scargill. What I do
want to talk about is the general issue here. Let us take a case
of a file that is 20 years old, for example. The information about
the activities of an individual held in that file may not be current,
but certainly what would be current would be information about
the operational arrangements of the Security Service. Their methods
would be highly current and of very great interest to criminals
or those who are trying to compromise the country's national security.
That is the argument about maintaining confidentiality. It is
the argument even about maintaining the confidentiality of the
agents who gave the Irish Secret Service information in 1874.
These are not idle points at all.
Chairman
537. You may have seen the evidence given
to us by the Data Protection Registrar on this point, where she
made the point that given that MI5 and MI6 are now becoming used
by the machinery of the State for ordinary law enforcement purposes,
when they are being used for ordinary law enforcement purposes
they should come under the scope of the Data Protection Act. Do
you accept that point, or have you considered that point since
the Data Protection Registrar gave that evidence?
(Mr Straw) I am considering the point, at the
moment, is my answer. I just make this point, if I may. The Security
Services' activities under the 1996 Act, in support of investigations
of serious crime, are actually very far from ordinary. It is true.
There are not very many investigations conducted by the Security
Services under that now. They are tasked by the National Intelligence
Service and only by NSIS when NSIS believes that the Security
Service has some experience or techniques which would not be available,
for one reason or another, to the police. So it is a very limited
and particular facility and quite out of the ordinary.
Mr Ruffley
538. I am delighted to welcome you here,
Home Secretary. We are both lawyers and both political advisers.
We both believe in freedom of information and you support Tory
rule and policies as well so I am delighted you are here. Are
the personal files held by MI5 on you going to be destroyed?
(Mr Straw) I have no idea. Nor do I believe that
I should be involved in that decision at all, any more than I
should be involved in any other Ministerial decision which would
affect me personally.
539. Who will make that decision and when?
(Mr Straw) What we are doing, and a good deal
of work is going on in this, is looking at the file retention
and destruction policies of the Security Service. I hope, as I
said in the debate initiated by your colleague, Julian Lewis,
a couple of months ago, to make an announcement about this before
the end of the summer. We are looking at the policy of destruction
of files and their retention. How they are to be reviewed. In
other words, which should be destroyed and which should be placed
in the Public Record Office, if necessary (using that ugly American
phrase) with redactions, which means words or parts deleted. There
is a group of experts to look at these. I am also looking at the
methods as well. I am on the case so I am sorry but I cannot give
you more details at the moment because I have not made final decisions
about it.
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